The Dunleavy Co.

National Labor Relations Board - Board Decisions

Dec 30, 1955

114 N.L.R.B. 1589 (N.L.R.B. 1955)

THE DUNLEAVY COMPANY 1589
The Dunleavy Company and Retail, Wholesale and Department
Store Union, AFL-CIO,' Petitioner. Case No. 1-RC-492G4. De-
.cember 30,1955
- DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Martin P. Burns, hearing
officer . The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
After the close of the hearing, the Employer filed with the Board
a request that the Board redetermine the question of compliance with
the requirements of Section 9 (f), (g), and (h) of the Act by the
Petitioner and by the CIO, with which the Petitioner was affiliated
prior to the merger of the AFL and CIO. In its request, the Em-
ployer alleges that the members of the Petitioner's international execu-
tive board and of its general council, the regional directors, inter-
national organizers , and international representatives of the Petitioner,
the members of the executive board of the CIO, and the regional
directors of the CIO, are officers of their respective labor organizations
within the meaning of Section 9 (h) of the Act, and that such indi-
viduals have not complied with the requirement set forth in that sec-
tion of the Act.2
As set forth in the Board's Rules and Regulations,' the Board, in
determining compliance with Section 9 (h) of the Act, deems an
officer of a labor organization to be "any person occupying a position
identified as an office in the constitution of the labor organization,"
with an exception not material here. The positions named in the Em-
ployer's request are not identified as offices in the constitutions of the
respective labor organizations. In alleging that the occupants of such
positions are "officers" within the meaning of Section 9 (h), the Em-
ployer relies on the recent Coca-Cola and Goodman cases 4 in which
courts of appeals have disagreed with the Board's established test for
determining who is an officer within the meaning of Section 9 (h),
and in the latter case held to be officers individuals who occupied posi-
tions not identified as offices in the Union's constitution. As the
Board's petition for certiorari in the Coca-Cola case has been granted
' As the AFL and CIO merged after the hearing in this case , we are taking notice of
the merger and amending the designation of the' Petitioner.
' Section 9 (h) of the Act pertains to the filing of certain affidavits with the Board by
officers of labor organizations.
' Section -10213 (b) (3), National Lalior Relations Board Rules and Regulations , Series
f,, as amended ; see also Coca - Cola Bottling Company of Louisville , Inc, 108 NLRB 490,
492-493.
'N. L. 'R: B. v. Coca- Cola Bottling Co of Louisville , Inc., 219 F. 2d 441 (C. A. 6), cert.
granted 350 U. S 819; Goodman Manufact uring Company v N. L R B , 227 F 2d 465
(C. A.7);.
114 NLRB No 249.
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Supreme Court, and the Board has determined to seek certiorari
in the Goodman case, the Board, with all due deference to the opin-
ions of the aforementioned courts of appeals, adheres to its established
test until such time as the Supreme Court holds otherwise.
As all persons occupying positions identified as offices in the consti-
tutions of the Petitioner and the CIO have filed the required affidavits,
the Board is administratively satisfied that the Petitioner is in com-
pliance with the requirements of Section 9 (h) of the Act. The Board
is also administratively satisfied that the Petitioner is in compliance
with the requirements of Section 9 (f) and (g) of the Act. The
Employer's request that the Petitioner's compliance status be rede-
termined is therefore denied.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.'
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. In accordance with the agreement of the parties, all production
and maintenance employees at the Employer's Waltham, Massachu-
setts, plant, excluding office clerical employees, professional employees,
guards, and supervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
5 The Employer adduced evidence at the hearing apparently for the purpose of establish-
ing that the Dunleavy Organizing Committee is a labor organization within the meaning
of the Act As the record establishes that this committee exists only for the purpose of
organizing the Employer ' s employees on behalf of the Petitioner, and has none of the
attributes of a labor organization as defined in the Act, we find that this committee is
not a labor organization within the meaning of the Act See Olin Matliteson Chemical
Corporation , 114 NLRB 948
Commodore Watch Case Co., Inc. and International Jewelry
Workers Union , Local 1 , AFL-CIO.' Cases Nos. 2-CA-3850 and
2-RC-6711. December 30,1955
DECISION, ORDER, AND DIRECTION
On March 31, 1955, Trial Examiner Thomas N. Kessel issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had,engaged in and was engaging in certain unfair labor
I The AFL and CIO having merged subsequent to the hearing in this proceeding, we are
amending the identification of the affiliation of the Union accordingly.
114 NLRB No. 250.